According to the February 18, 2010 Post-Standard, City of Syracuse officials have a policy that after an owner whose house in in foreclosure stops paying water bills, the City “won’t take payments from a tenant once water has been shut off.” A City Water Department rule states that
Applications for service to premises occupied by a tenant shall be made by the owner of the premises, who shall be responsible for all water, sewer, and garbage service to said premises.
This week, tenants organized to protest the policy of not serving tenants after the owner defaults. See Syracuse Tenants Protest City Water Shutoff Policies, PULP Network, February 17, 2010. Apparently the City relented and is putting the water on for awhile, but only until the tenant moves.
We believe a tenant should not be rendered homeless because of municipal water department policies that bar service to tenants or impose unreasonable conditions of service. A tenant should able to obtain water service from a municipal utility, despite a restriction in its ordinances, because there is a common law duty of a utility to serve the public without discrimination on just and reasonable rates, terms and conditions of service.
Moreover, because the municipal utility is a public institution, its rules and practices must pass muster under the equal protection clause of the Constitution. Denying water or shutting off water to those who are not owners of property is arbitrary and irrational. Even if a tenant defaults in payment, the City has recourse against the owner to collect the unpaid bill. Allowing the tenant to take service gives the City two parties it can collect from. Also, conditioning service upon the tenant paying the owner’s bill for past service is unreasonable and unconstitutional. See Auburn N.Y. Municipal Water User Opposes City’s Motion to End Litigation Over Constitutionality of Termination and Denial Practices, PULP Network, January 12, 2010
Today, the Post Standard Editorial Board recommended change in the Syracuse policies. See Water Shutoffs: Syracuse right to move to protect tenants, Feb. 19, 2010.
Due to a statutory gap, although private water utilities are subject to HEFPA, and municipal gas and electric utilities are subject to HEFPA, municipal water utilities are exempt. See City Water Customers Need HEFPA Protections, PULP Network, October 23, 2009. Under HEFPA, a tenant at premises where service is threatened due to an owner’s default gets notice and an opportunity either to take service in his own name or to pay on the owner’s bill for current (not past) service, and under the Real Property Law, the tenant can deduct those payments on the owner’s water bills from rent. Also HEFPA provides for notice and a hearing prior to service termination, and notice to tenants prior to termination.